We use cookies to give you the best online experience. By using our website you agree to our use of cookies in accordance with our cookie policy. Learn more here.Close Me
The Federal District Court of Oregon has ruled that under
recently amended Federal Rule of Evidence (FRE) 502, the
attorney-client privilege was waived when privileged materials were
produced because of the disclosing party's careless privilege
review. Relion, Inc. v. Hydra Fuel Cell Corp., 2009 WL
5122828 (D. Or. 2008).
In preparation for opposing counsel's inspection and copying
of documents at Relion's offices, Relion's attorneys
reviewed the requested documents to remove attorney-client and work
product materials. Following the inspection, Hydra's counsel
provided Relion with a complete hard copy set of the documents
Hydra selected and copied off-site, and provided Relion's
outside counsel with electronic, text-searchable copies of the
selected documents.
Four months following the inspection, Relion's counsel
received a letter from Hydra's counsel that discussed two
privileged emails that Hydra had copied during the document
inspection. In response to the letter, Relion's counsel
asserted that the two emails were privileged. A subsequent review
by Relion's counsel of Relion's files determined that the
emails had been inadvertently left among the documents provided to
Hydra for inspection. Relion moved to have the emails returned
pursuant to an existing protective order.
The district court relied on newly amended FRE 502 to hold that
Relion had waived the attorney-client privilege protecting the two
emails — specifically FRE 502(b)(2), which establishes
that an inadvertent production of privilege material will not
constitute waiver if "the holder of the privilege or
protection took reasonable steps to prevent disclosure."
According to the court, Relion had three opportunities to identify,
remove, and protect the two privileged emails: the pre-inspection
privilege review, the post-inspection hard copy production to
Relion by Hydra, and the post-inspection production to Relion's
outside counsel of electronic, searchable copies of the selected
documents. Relion's failure to identify and remove the two
privileged emails during these three opportunities led the court to
hold that Relion had fallen short of its FRE 502(b)(2) duty.
The Relion decision gives notice that as part of their
FRE 502 analysis, courts will be scrutinizing attorneys'
privilege review procedures. Relion also makes clear that
whether an attorney (or privilege holder) re-reviews
produced materials after production to identify
inadvertently produced privileged materials will bear on not just
the FRE 502(b)(3) question (rectifying inadvertent disclosure), but
also the FRE 502(b)(2) question of whether the privilege holder
took reasonable steps to protect the privileged material.
Mayer Brown is a global legal services organization
comprising legal practices that are separate entities ("Mayer
Brown Practices"). The Mayer Brown Practices are: Mayer Brown
LLP, a limited liability partnership established in the United
States; Mayer Brown International LLP, a limited liability
partnership incorporated in England and Wales; and JSM, a Hong Kong
partnership, and its associated entities in Asia. The Mayer Brown
Practices are known as Mayer Brown JSM in Asia.
This
Mayer Brown article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein.
Copyright 2008. Mayer Brown LLP, Mayer Brown
International LLP, and/or JSM. All rights reserved.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
A discussion on the jurisdictional limitations of forum-selection clauses, the inconsistencies with their enforceability, and the potential for the establishment of a standardized procedure to enable companies to evaluate forum-selection clauses with more certainty going forward.
Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion.
Keywords: Amgen v. Conn. Retirement Plans, Basic Inc. v. Levinson, Erica P. John Fund Inc. v. Halliburton Co., Fifth Circuit, fraud on the market, reliance, Supreme Court
In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.
Procedural rules that govern lawsuits in federal court permit defendants to make an "offer of judgment," which is a mechanism allowing a defendant to offer to settle a lawsuit.
